Ordered that the order is affirmed, without costs or disbursements.
The plaintiff's motion to reargue, based on an intervening change in the law (see, Cucuzza v. Vaccaro, 109 A.D.2d 101, affd 67 N.Y.2d 825), was made in July 1985 prior to the order of this court dated October 2, 1985, which dismissed plaintiff's appeal from the order of Special Term dated March 22, 1984, on the ground of lack of prosecution. This crucial fact clearly distinguishes the case at bar from the decisions in Bray v. Cox ( 38 N.Y.2d 350) and Montalvo v. Nel Taxi Corp. ( 114 A.D.2d 494, lv denied in part and dismissed in part 68 N.Y.2d 643), relied on by the third-party defendant. Accordingly, Special Term properly granted the plaintiff's motion for reargument (Mosca v. Pensky, 41 A.D.2d 775; Matter of William H. Van Vleck, Inc. v. Klein, 50 Misc.2d 622; Siegel, Practice Commentaries, McKinney's Cons Law of NY, Book 7B, CPLR C2221:8, pp 158-159), and upon reargument, correctly determined the plaintiff's motion on the merits. Mangano, J.P., Bracken, Niehoff and Spatt, JJ., concur.